Family President orders re-hearing of fact finding in case where boy adopted

The President of the Family Division has ordered the re-opening of a finding of fact hearing in care proceedings where a boy was later adopted.

The case of X (A Child), Re [2016] EWHC 1342 (Fam) involved a boy, X, who was born in 2012.

In his ruling Sir James Munby said that not long after X’s birth, an unnamed local authority issued care proceedings. In due course the care proceedings, together with proceedings for a placement order which the local authority had also issued, came on for a finding of fact hearing before a circuit judge in early 2013.

The local authority's Schedule of Findings Sought identified various injuries which X was said to have suffered, including a number of metaphyseal fractures. The judge had written reports from three experts, all of whom gave oral evidence, as did the birth parents. The judge found the local authority's case proved. There was no appeal from the judgment.

Later in 2013, the same judge conducted a 'welfare' hearing, following which the judge made care and placement orders in relation to X. There was no appeal from those orders.

In 2014, X was placed with prospective adoptive parents. Later that year they applied to adopt him. In response, the birth parents applied for permission to oppose the adoption application. Their application was heard by the same judge in 2015.

By then a criminal investigation was on foot, the Family President said. “At the subsequent trial in the Crown Court, the expert evidence had expanded both in volume and, very significantly, in its ambit, but at the date of the hearing before the judge in the family court this new evidence was not to hand. The judge refused the birth parents leave to oppose the adoption. Again, there was no appeal from his order. Later the same day, the judge made an adoption order in respect of X in favour of the adoptive parents….”.

In 2015 X’s birth parents were tried at a crown court. After the close of the expert evidence, the Crown abandoned the prosecution. The birth parents were, on the judge's direction, acquitted, on the basis that there was no case to answer.

The birth parents then applied to the Court of Appeal for permission to appeal out of time against the judge's original decision at the finding of fact hearing in 2013, before the adoption, on the ground that there was fresh evidence now available to them.

They sought orders setting aside the judge's findings and ordering a new trial, but did not apply for permission to appeal either against the subsequent care and placements orders or against the adoption order.

Their skeleton argument though said: “If the parents succeed in overturning the findings … they will seek revocation of the adoption order.”

The matter came before the Family President for directions on 28 April 2016. Sir James said the case put forward by the birth parents “is simple and compelling.

“They have been, they say…the victims of a miscarriage of justice. They seek to clear their names, both so that they may be vindicated and also so that there is no risk of the judge's findings being held against them in future.”

He noted that X’s guardian also supported the idea of a re-hearing as they thought it in X's best interests “that he should know the truth about his birth parents and about what did or did not happen to him”.

The Family President said: “In my judgment, and giving appropriate weight to the terrible burden which what is proposed will inevitably impose on the adoptive parents, although bravely and responsibly they do not oppose what is proposed, the claims of the birth parents, the best interests of X, and the public interest all point in the same direction: there must be a re-opening of the finding of fact hearing, so that the facts (whatever they may turn out to be) – the truth – can be ascertained in the light of all the evidence which is now available.

Sir James said he agreed with counsel that the test set out in In re Z (Children) (Care Proceedings: Review of Findings) [2-14] EWFC 9, [2015[ 1 WLR 95 – that there must be some real reason to believe earlier findings require revisiting, “mere speculation and hope is not enough” – had been met.

The judge said a full re-hearing of the original allegations made in the care proceedings should begin in October as “nothing short of a full re-hearing will suffice”.